Top court rules all EU countries must recognise same-sex marriages from other member states

The European Court of Justice (CJEU) ruled on Tuesday that all member states of the EU must recognise the legality of same-sex marriages contracted in another EU country, regardless of whether same-sex marriage is covered in its own national legal system. In its decision, the CJEU stated that failure to do so would violate the freedom of movement and residence of the couple concerned and their fundamental right to respect for private and family life, which is contrary to European law.

The European Court of Justice recognised in its ruling that legislation concerning marriage is a national responsibility, but warned that, in exercising such a responsibility, member states must also respect European law and, therefore, the right "to lead a normal family life" when European citizens exercise their right to free movement and residence within the EU. The ruling cites the case of a Polish couple residing in Germany, who were married in Berlin in 2018. They decided to move back to Poland and requested a transcript of their German marriage certificate, a procedure that was rejected by the Polish civil registry on the grounds that Polish law does not authorise same-sex marriages.

Seven years later, the CJEU ruled in favour of the plaintiff couple and stated that, when EU citizens as a couple create a family life in the host member state, in this case through legal marriage, they must be able to have the "certainty" of being able to continue that status upon returning to their country of origin.

Furthermore, it warned that refusal to recognise a marriage legally contracted by two EU citizens of the same sex in another member state may lead to serious administrative, professional and private difficulties, forcing the spouses to live as though they were unmarried in their member state of origin. In short, it concluded that such a refusal is "contrary to EU law" and violates "the fundamental right to respect for private and family life". According to the CJEU, the obligation to recognise these unions "does not infringe national identity" and "does not imply that that state must recognise same-sex marriage within its national law".

In any case, the Luxembourg-based EU court highlighted that countries have a margin of discretion in choosing how they recognise same-sex marriages and that the transcript of a foreign marriage certificate is one of the possibilities. Other means could also be established, provided that they are "equivalent" to the recognition laid out for marriages between different sexes. The chosen method must not prevent or unduly hinder recognition nor discriminate against same-sex couples on the grounds of their sexual orientation.

Therefore, this ruling establishes that, since a transcript is the only means provided by Polish law for a marriage contracted in another member state to be effectively recognised, then Poland "is obliged to apply it equally to marriages contracted by persons of the same sex as to those contracted by persons of the opposite sex".